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San Diego Law Review

Document Type

Article

Abstract

Individual campaign contribution limits are one of the few remaining constitutional tools in a state or local government’s toolkit for fighting corruption, or its appearance, in elections.  Because contribution limits marginally burden a contributor’s First Amendment freedoms, a challenged limit must survive an arduous tailoring analysis to ensure that the limit is closely drawn to the government’s purported interest in combatting actual or perceived quid pro quo corruption.  However, before a challenged limit is subjected to this tailoring analysis, the government must first demonstrate that it has an individualized interest in addressing the existence of actual or perceived quid pro quo corruption in its jurisdiction.  Despite hinting at the existence of this “evidentiary burden” five decades ago in Buckley v. Valeo, the Supreme Court has continually declined to define the scope of the burden, or the quantum of evidence that a government must produce to meet it.  Left without guidance, the Courts of Appeal have developed differing approaches to the burden, with a majority of circuits requiring only that the government produce evidence sufficient to establish that the risk of actual or perceived corruption is not “illusory” or “merely conjectural.”

This Article challenges an inherent misconception underlying the evidentiary burden: that a state or local government’s interest in combatting actual or perceived quid pro quo corruption is ever illusory or conjectural.  In light of the overwhelming evidence that the evidentiary burden is a solution in search of a problem—and the substantial risk that the burden is causing more harm than good—I argue that the Supreme Court should do away with the burden altogether.

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